June 26 should be a nation holiday, at least for LGBT people and their allies. Fourteen years ago today, the Supreme Court decided Lawrence v. Texas, 539 U.S. 558 (2003), holding that the right to privacy prevented Texas from criminalizing same-sex intimate conduct. Four years ago, the Court struck down the so-called Defense of Marriage Act in United States v. Windsor, 133 S. Ct. 2675 (2013). And of course, this is the second anniversary of Obergefell v. Hodges, 135 S. Ct. 3584 (2015), which held that same-sex couples have a constitutional right to marry.
Today, in Pavan v. Smith, No. 16-992 (June 26, 2017), the Court made clear that it meant it when it said that “the Constitution entitles same-sex couples to civil marriage ‘on the same terms and conditions as opposite-sex couples.’” (Citing Obergefell, slip. op. at 23.) Two same-sex couples challenged a decision by the Arkansas Department of Health to list only the birth mother on their children’s birth certificates. The department relied on a statute requiring that when a married woman gives birth her husband’s name is entered as the father. The Arkansas Supreme Court, in a divided ruling, held that the statute centered on the biological relationship of the parents and child, not the marital relationship and so did not run afoul of Obergefell.
The Supreme Court observed that the statute applies where the parties used artificial insemination for opposite sex couples but not same-sex couples. This disparate treatment is proscribed by Obergefell. Indeed, Obergefell expressly listed birth certificates as one of the “rights, benefits, and responsibilities” of marriage to which same-sex couples were entitled, noting that some of the challenges at issue in Obergefell included the failure to list both parents on birth certificates.
Justice Gorsuch, joined by Justices Thomas and Alito, dissented. Justice Gorsuch did not opine on whether Obergefell was correct, but instead claimed that reliance on biology was not improper and that other statutes would appear to provide relief for the petitioners.
The Supreme Court of Texas is currently considering whether the city of Houston may provide benefits to spouses of same-sex couples in Pidgeon v. Turner, No. 15-0688, which was heard on March 1, 2017. An appellate court had applied Obergefell, but the Texas Supreme Court granted certification after initially denying it, based on a dissent that claimed that benefits of marriage were subject to rational basis review for equal protection claims. Pavan makes clear that is not the case.
While the Supreme Court giveth, it also taketh away – potentially. This morning the Court granted certification in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, No. 16-111, which challenges the applications of antidiscrimination laws to religious objectors. In Masterpiece Cakeshop, the petitioner violated Colorado’s public accommodations law by refusing to provide a wedding cake to a same-sex couple. Certiorari orders do not indicate who voted in favor, but it is almost certain that the four conservatives voted to hear the case, speculating that they could convince Justice Kennedy or his successor if Justice Kennedy retires.